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Feb. 17 — The two deferred action programs that drew the most attention when President Barack Obama announced various immigration policies in November are on hold following a ruling by a federal judge in Texas late Feb. 16.

Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction preventing the deferred action for parents of Americans and lawful permanent residents (DAPA) program and the expanded deferred action for childhood arrivals (DACA) program from going into effect.

Both programs were announced in a Nov. 20, 2014, memorandum from Homeland Security Secretary Jeh Johnson that was part of a wide-ranging executive action on immigration revealed the same day by President Obama.

In light of the decision, Johnson said Feb. 17 that the Department of Homeland Security won't be collecting applications for expanded DACA beginning Feb. 18 as originally planned. The DHS also is putting on hold its plan to collect DAPA applications in the spring.

“The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority,” Johnson said in a statement. “Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do.”

Notice-and-Comment Rulemaking Needed

After finding that the state of Texas, the lead plaintiff in the case involving claims by it and 25 other states and/or their representatives, has standing to sue the federal government, Hanen held that the plaintiffs are likely to prevail on their claim that the DAPA memo is a substantive rule that requires adherence to the notice-and-comment rulemaking process of the Administrative Procedure Act.

Hanen avoided other issues raised in the case, including whether the DAPA and DACA programs are contrary to the Immigration and Nationality Act and whether they violate the U.S. Constitution's “take care” clause and separation of powers doctrine.

In addition, the injunction explicitly leaves intact the original DACA program—announced in 2012—as well as the other elements of Obama's executive action, including a separate memo from Johnson establishing new immigration enforcement priorities for the DHS.

“This is a time-out, a bump in the road,” Debbie Smith, Associate General Counsel, Service Employees International Union said Feb. 17. “It’s not the end of the game, and we think that justice will prevail.”

Smith spoke during a conference call with others who also worked on an amicus brief filed in the case in support of the Obama administration's programs. She said the SEIU is encouraging undocumented immigrants who may be eligible for DAPA and expanded DACA to continue preparing their paperwork and proceed as if the decision hadn't come down.

‘Don't Panic.'

“Our message to our members and to families who are preparing for deferred action, whether it's expanded DACA or DAPA is: don’t panic,” Smith said.

In a statement issued early Feb. 17, the White House said the Justice Department, which is representing the federal government in the case, already has indicated its intention to appeal to the U.S. Court of Appeals for the Fifth Circuit.

Marielena Hincapié, executive director of the National Immigration Law Center, who joined the SEIU's Smith during the Feb. 17 conference call, said her organization is encouraging the DOJ not only to appeal, but also to request an emergency stay of the injunction.

But the decision was applauded by House Judiciary Committee Chairman Bob Goodlatte (R-Va.).

“President Obama’s executive overreach on immigration poses a clear and present danger to our Constitution and I am pleased that the President’s actions have been temporarily halted so that the states’ lawsuit can move forward,” Goodlatte said in a Feb. 17 statement. “By acting unilaterally to rewrite our nation’s immigration laws, President Obama has disregarded the will of the American people and violated the Constitution. We cannot allow one man to nullify the law of the land with either a stroke of his pen or a phone call.”

Similarly, Senate Homeland Security and Governmental Affairs Chairman Ron Johnson (R-Wis.) Feb. 17 said the decision “shows that the president has exceeded his legal and constitutional authority.”

“I hope that the district court's ruling will be upheld and that the Senate will vote on a bill to fund all of the Department of Homeland Security's important activities except for the illegal executive amnesty,” he said.

A DHS funding bill (H.R. 240) that passed the House last month has been stalled in the Senate because of Democrats' united opposition to riders that would block the DAPA and DACA programs. On three separate occasions, the Senate failed to invoke cloture and bring the measure to the floor for debate.

Driver's License Cost

In finding that the plaintiffs have standing, Hanen looked to the additional expense Texas would bear in issuing driver's licenses to DAPA recipients, estimated at some 500,000 individuals. He pointed out that the cost of issuing the licenses far outweighs the $24 fee applicants must pay—and that some of that cost comes directly from the federal government because of the requirements imposed by the REAL ID Act.

That federal law requires states to run driver's license applicants through the federal Systematic Alien Verification for Entitlements system in order to determine lawful immigration status, at a cost of $0.50 to $1.50 per applicant.

The court rejected the federal government's argument that this injury is “self-inflicted” because DAPA doesn't require the issuance of driver's licenses. According to the court, failure to provide licenses to DAPA recipients could land the states in hot water, as evidenced by the federal government's lawsuit against Arizona for refusing to provide licenses to DACA recipients.

“An injury cannot be deemed ‘self-inflicted' when a party faces only two options: full compliance with a challenged action or a drastic restructure of a state program,” Hanen wrote.

The court found that the injury will be directly caused by DAPA, as the program encourages participants to apply for work authorization, and driving remains the chief means of transportation to places of employment in the U.S. “Far from a generalized injury or ‘pie in the sky' guesswork, Plaintiffs have demonstrated a direct, finite injury to the States that is caused by the Government's actions,” Hanen said.

He added that an injunction against the program would “unquestionably redress” the states' injuries.

Prudential Standing Established

The court also found that the plaintiff states had shown prudential standing because they are within the “zone of interests” protected by the Immigration and Nationality Act. States are required to stay out of immigration matters under the federal scheme because the federal government was entrusted to provide protection to the states from the harms derived from illegal immigration, it said.

“The fact that DAPA undermines the INA statutes enacted to protect the states puts the Plaintiffs squarely within the zone of interest of the immigration statutes at issue,” Hanen said.

The court found that the doctrines of parens patriae—under which states can sue to protect their own citizens—and the narrow standing avenue under Massachusetts v. EPA, 549 U.S. 497, 63 ERC 2057 (2007)—which allows states to sue to advance certain proprietary interests—don't provide standing in the present case.

But the court held that the states do have standing based on federal abdication—what it said was the “most provocative and intellectually intriguing standing claim” in the case. The claim arises when the federal government exerts sole authority over a certain area and yet “refuses to act in that area,” the court explained.

Here, the U.S. Supreme Court in Arizona v. United States, 132 S. Ct. 2492, 115 FEP Cases 353 (2012), established that the federal government has complete control over the regulation of illegal immigration, the court said. And DAPA is the federal government's decision not to enforce immigration law with respect to a certain portion of the undocumented population.

“It is not necessary to search for or imply the abandonment of a duty; rather, the Government has announced its abdication,” Hanen wrote. “Assuming that the concept of abdication standing will be recognized in this Circuit, this Court finds that this is a textbook example.”

Not an Exercise of Prosecutorial Discretion

On the merits, the court said it doesn't have the authority to second-guess the DHS's enforcement priorities or its decisions about how to allocate resources, to the extent that there is no constitutional violation.

But the states argued that DAPA isn't merely an exercise of prosecutorial discretion, and instead was an act of executive branch lawmaking, an abandonment of its duties and a failure to follow the proper procedures under the APA.

Analyzing the APA claim—that the DAPA program should have been implemented via notice-and-comment rulemaking—the court first found that the Nov. 20 memo is a final agency action that is reviewable under the statute. In the memo, Johnson ordered that some actions be taken immediately, and the DHS has been hiring additional staff and expanding its facilities in expectation of implementation, the court said.

The states also are within the zone of interests that can sue under the APA, the court said, because they lack the power to take action on illegal immigration themselves. The protection afforded by the federal government in exchange for that loss of power presumes enforcement of federal immigration laws, the court said, adding that the states “are entitled to nothing less.”

“DAPA, no matter how it is characterized or viewed, clearly contravenes the express terms of the INA,” Hanen wrote.

The court held that DAPA also doesn't fall within the APA's exception to review, which precludes courts from getting involved if the action is committed to the agency's discretion by law. Under the U.S. Supreme Court's decision in Heckler v. Chaney 470 U.S. 821 (1985), there is a rebuttable presumption that there is no review of such actions, the court said.

Unlike the situation in Heckler, this is not a situation in which the DHS is simply not enforcing the law, the court found. Rather, it said, the agency is taking an affirmative action that provides legal presence and benefits—including work authorization and Social Security numbers—to individuals otherwise removable under the law.

The court said it would be a different situation if the states were suing over what has been the DHS's practice over the past several years, which is not to prosecute the kind of immigrants likely eligible for DAPA. But prosecutorial discretion and/or refusing to enforce a law “is just that—not enforcing the law,” Hanen said. “Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations.”

Presumption Rebutted

Even if the Heckler presumption applied, it would be rebutted in this case, the court held.

The INA mandates that immigrants who illegally crossed the border or overstayed their visas be removed from the U.S., rather than providing authority for not doing so, the court said. “The Government must concede that there is no specific law or statute that authorizes DAPA,” the court said.

Instead, the federal government relied on a general grant of authority in the INA to establish regulations for carrying out the statute, as well as a directive in the Homeland Security Act requiring the DHS secretary to establish immigration enforcement policies and priorities.

But the court said the INA provision only grants authority to regulate lawful immigration, and the Homeland Security Act provision on establishing priorities doesn't provide the right “to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security Numbers, and travel in and out of the country.”

The court held that the INA's directive that the DHS “shall” remove undocumented immigrants doesn't determine how the DHS carries out its duties, but “certainly deprives the DHS of the right to do something that is clearly contrary to Congress' intent.”

In addition, past exercises of prosecutorial discretion or deferred action don't confer the authority to establish the DAPA program, the court held.

Substantive Rule, Not Guidance

The court held that the DAPA memo is a substantive rule under the APA rather than general guidance, despite the federal government's attempt to characterize it as a set of mere guidelines. As such, it can't be issued without going through notice-and-comment rulemaking.

“It represents a massive change in immigration practice, and will have a significant effect on, not only illegally-present immigrants, but also the nation's entire immigration scheme and the states who must bear the lion's share of its consequences,” Hanen wrote.

Finding that the plaintiffs are likely to prevail on the merits, the court found that the significant financial harm to the states in the absence of a preliminary injunction outweighs any harm to the federal government from having to delay the programs because of an injunction.

The court recognized that putting DAPA and the expanded version of DACA on hold does impact the rights of millions of undocumented immigrants who would be eligible for the programs. But “there is no indication that these individuals will otherwise be removed or prosecuted” in the absence of the programs, it said.

On the other hand, if the programs begin and are later found unconstitutional, the federal government would have “pertinent identifying information” on these undocumented immigrants that it then could use to deport them, the court noted.

Andrew Stephen Oldham, Adam Nicholas Bitter, Angela V. Colmenero, Arthur D'Andrea, John Campbell Barker and Scott A. Keller of the Texas attorney general's office in Austin, Texas, and Peter Margulies of the Roger Williams University School of Law in Bristol, R.I., represented the state of Texas. Kathleen R. Hartnett and Kyle Renee Freeny of the Justice Department in Washington, D.C., and Daniel David Hu of the U.S. attorney's office in Houston represented the federal government.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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